Day on Torts
Social media and the ability to broadcast one’s opinions across the internet are raising many new issues in defamation law. A recent Tennessee case held that when a Facebook post and picture are posted together, they must be considered together and the communication should be analyzed in its entirety.
In Weidlich v. Rung, No. M2017-00045-COA-R3-CV (Tenn. Ct. App. Oct. 26, 2017), defendant sued plaintiff for defamation over a post plaintiff made on Facebook. Plaintiff and defendant had both attended a heated school board meeting regarding the potential formation of a Gay/Straight Alliance at their local high school. Defendant was in favor of the group, while plaintiff “expressed strong opposition to the formation.” During this time, plaintiff’s wife “made tentative plans to run for” the school board. At a subsequent meeting, defendant saw plaintiff’s vehicle in the parking lot. On the back of the vehicle, plaintiff had a sticker with the Confederate flag and the word “SECEDE;” a sticker with the words “God, Family, The South” next to another Confederate flag; and another sticker that said “The League of the South,” which Defendant testified was a hate group. Defendant took a picture of these stickers and posted it to her Facebook wall, along with the caption: “Free Bonus Prize. The Fisty Family are also white supremacist! We’ll need to keep this handy come election time.”
Plaintiff sued for defamation based on this Facebook post. The General Sessions Court ruled for defendant, finding that plaintiff “had been unable to establish damages.” In the trial court, plaintiff had a witness testify that the witness stopped using plaintiff’s mechanic shop and had spent around $7,000 using a different service provider. The trial court ruled for plaintiff and awarded him $7,000 in damages and $5,000 in attorney’s fees. In its order, the trial court found that the statement was defamatory, that it was made maliciously, and that at the time of posting neither plaintiff nor his wife were public figures. The Court of Appeals reversed this ruling.
On appeal, the Court looked at whether “the allegedly defamatory statement made by [defendant] was capable of carrying a defamatory meaning.” The Court noted that “[a] writer’s comments upon true and nondefamatory published facts are not actionable, even though the comments are stated in strong or abusive terms.” (internal citation omitted).
In this case, the Court stated that “[s]ince both a visual image and accompanying written statement are at the heart of this case, we deem it necessary to display the entire communication at issue.” The Court found that the trial court “mistakenly focused only on the words of [defendant’s] statement and ignored the photo which was also a part of her statement.” Ultimately, the Court held that this Facebook post was “an opinion based upon disclosed facts, [and] when viewed in its entirety could not convey a defamatory meaning.” The Court reasoned:
[Defendant’s] Facebook post did not consist merely of this statement. If that were so, then our analysis would be different. [Defendant’s] statement instead related to the photograph contained in her post. Anyone reading [defendant’s] post had full access to accept or reject [defendant’s] opinion as they saw fit. The surrounding dramatic, hyperbolic language in the post bolsters this determination. Had [defendant] simply written that “[Plaintiff] is a white supremacist” with no accompanying photograph or context, that would be another matter. …Taking the statement in its entirety, including the photo, [defendant’s] written statement could only be read as being her opinion based upon what the photo showed and did not imply the existence of unstated defamatory facts. [Defendant’s] written statement was her comment upon true and published facts, the photo, and as such was not actionable even though stated in strong or abusive terms. …Anyone sitting in traffic behind [plaintiff] or walking behind his car in a parking lot could see these same bumper stickers and draw her own conclusions.
(internal citations and quotations omitted). Because the statement was held to be an opinion about disclosed facts, the trial court’s ruling for plaintiff was reversed.
Anyone considering accepting or defending a defamation case related to social media would be wise to read this opinion. As this area of law continues to take shape, this current holding means that posts to social media that include a photo and statement should be viewed together for defamation purposes